Commonwealth v. Pratt
| Decision Date | 27 February 1882 |
| Citation | 132 Mass. 246 |
| Parties | Commonwealth v. Nathan P. Pratt |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex.
Exceptions sustained.
B. F Butler, for the defendant.
G Marston, Attorney General, (C. H. Barrows, Assistant Attorney General, with him,) for the Commonwealth.
OPINION
This is an indictment against the defendant charging him in fifty-two counts with larceny by embezzlement, upon twenty-nine of which the jury returned a verdict of guilty, and upon the residue of which they returned a verdict of not guilty. The indictment seems to be founded upon the Gen. Sts. c. 161, § 38; and the question is presented for our consideration, whether the indictment should have been under that section or under some other section of the same chapter, several of which relate to the subject of embezzlement. It is contended by the defendant that the treasurer of a savings bank is not punishable under that section. Inasmuch, however, as under each section the crime is in law the same, to wit, larceny, we consider first the question which would arise under whichever section of the law the defendant is indicted.
Section 35, which is the most general and comprehensive in its language, is in these words: "Whoever embezzles, or fraudulently converts to his own use, or secretes with intent to embezzle or fraudulently convert to his own use, money, goods, or property, delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of simple larceny." Section 38 closes with the same words, "shall be deemed guilty of simple larceny." Section 37 says that the persons committing the act "shall be deemed guilty of larceny." Section 39 says the persons committing the act "shall be deemed guilty of larceny in said bank," which is larceny in a building; and section 25 provides that one who severs from the realty with intent to steal, and takes and carries away, the property of another of value, "shall be guilty of such simple or aggravated larceny as he would be guilty of if such property were personal property."
The crime, therefore, of which the party is taken to be guilty, is the crime of larceny; and although the aggravation of the offence, by reason of the amount of the property taken or of the place where the offence is committed, may be varied, the crime of which he is guilty is the crime of larceny.
We do not deem it necessary to speak of the phraseology in these sections, "shall be deemed guilty of larceny," because when, by legislative enactment, certain acts are deemed to be a crime of a particular nature, they are such crime, and not a semblance of it, nor a mere fanciful approximation to or designation of the offence. The party, therefore, who embezzles property in any of the modes suggested in the statute, is guilty of larceny; that is, he steals it.
The difference in the phraseology in § 57 of the same chapter is noticeable, inasmuch as it does not designate the crime of which the party may be guilty, but only states the acts which constitute the crime, and adds, "shall be punished as in case of larceny of property of like value."
The objection is made by the defendant, that upon this indictment he is subject to be convicted of the crime of larceny when that crime is not charged against him technically and formally as required by law; and that leads to the inquiry whether in this Commonwealth it is settled that the crime of larceny consists in the doing of certain acts in relation to property, which acts must be charged against the defendant before he can be convicted of the crime of larceny. We think it is settled that no person in this Commonwealth can be convicted of the crime of larceny of any property until it is charged substantially and formally that he feloniously stole took and carried away such property. These are words absolutely necessary to constitute a charge of larceny. In Commonwealth v. Adams, 7 Gray 43, it was held that the omission of the word "away," whether accidental or by design, so that the charge against the defendant was that he "feloniously did steal, take and carry," against the peace &c., was a fatal defect in the indictment, and no judgment could be rendered upon it; and although the same...
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